Lord McNally: My Lords, the last days of a dying Administration might seem to be a strange time to be looking for a clear statement from government about plans to reform and update the FoI Act 2000. I have enormous respect for the Minister and have long advocated that the House publish a collection of his bon mots from the Dispatch Box, which leave the House amused but not the wiser—the greatest of all Dispatch Box skills. In the past few years, we have witnessed not so much open government as open warfare from this dysfunctional Administration. I am not expecting any new announcements this evening. I consider this debate to be simply a “billet doux” to the incoming Administration, letting them know that if there is no legislation announced for the next Session, I will seek to introduce a Private Member’s Bill to update and improve the FoI Act 2000.
The initial aim of the Act was to increase openness and transparency, increase accountability, improve decision-making, increase public understanding of the process of decision-making in government, increase participation in that decision-making and increase public trust in government. It would be a brave man or woman who, as we approach the 20th anniversary of the Act coming into force, would claim that all those objectives have been achieved. However, as I believe my noble friends Lord Shipley and Lord Scriven will illustrate, the need for a robust and effective FoI Act is more necessary and the need for its expansion and update more urgent than ever.
The reasons are twofold. First, we live in an entirely different world of information since the Act became law in 2000. We now live in the age of the internet, the  data revolution, the fourth industrial revolution and the forward march of artificial intelligence. These revolutions through which we are living have provided more access to information and opinion than at any time in human history, but they have also thrown up profound concerns about personal privacy and the capacity of government and other organisations to amass information about the individual far beyond anything dreamt up in George Orwell’s Nineteen Eighty-Four dystopia.
Secondly, over the past 20 years under successive Governments, there has been a steady move of responsibility for a wide range of services and activities out of the public sector to private sector and NGO delivery. This has blunted the effect of the FoI, and important services sectors have moved beyond its reach.
At this moment of double jeopardy, we are fortunate in having an Information Commissioner who has shown admirable leadership and strength in response to those challenges. In January this year, Elizabeth Denham exercised her right to communicate directly to Parliament to send what I consider a landmark paper entitled Outsourcing Oversight? The Case for Reform and Reforming Access to Information Law. The message she sent was clear and unequivocal:
“In the modern age, public services are delivered in many ways by many organisations. Yet not all of these organisations are subject to access to information laws. Maintaining accountable and transparent services is a challenge because the current regime does not always extend beyond public authorities and, when it does, it is complicated. The laws are no longer fit for purpose”.
That was her message to Parliament:
“The laws are no longer fit for purpose”.
That submission of more than 150 pages, submitted to Parliament in January, produced a response from Chloe Smith MP, then Parliamentary Secretary to the Cabinet Office, of two and a half pages, which even the kindest would say would say was underwhelming in its enthusiasm for reform. Let me give a few quotes to let the House have a flavour of that response:
“A number of those recommendations would require legislation and so will require careful and detailed consideration by the Government”.
Students of vital vocabulary will know that “careful and detailed consideration by government” is the antithesis of Churchill’s “action this day” dictum.
I quote again from Chloe Smith’s response:
“we are concerned about a disproportionate burden, because we do not want to discourage smaller organisations from serving the public”—
an admirable concern which excuses lack of action in the guise of protecting charities and SMEs. However, in a letter to me, Chris Walker, public affairs manager of the National Council for Voluntary Associations, writes:
“NCVO would like to see greater transparency within government contracting, and as such, in principle, we would welcome the extension of FOI”.
It is true that he mentions a number of measures to protect charities from being overburdened, which can then be taken into account in drafting legislation. I found the NCVO letter helpful and constructive. It convinces me that the time is right for the fresh legislation called for by the Information Commissioner.
In her insipid letter to the information Commissioner of 24 April, Chloe Smith said that the Government will,
“focus on the implementation of the policies already in place”.
That is despite the commissioner’s clear message to Parliament that the laws are no longer fit for purpose.
The ICO makes a number of recommendations about reform of the law. It includes making greater use of existing powers under the Freedom of Information Act to designate a greater number of other organisations exercising functions of a public nature and amending the law to give a clear legislative steer, with the clear aim of enabling greater access and transparency.
As the ICO’s paper points out, full transparency matters, because the Government spends £284 billion a year—almost a third of their total expenditure—on external suppliers. It also matters because recent events, such as at Grenfell Tower in 2017, have raised serious concern about the public’s access to information about the delivery of social housing—a matter which I know will be developed by my noble friend Lord Shipley. The collapse of Carillion in 2018 highlighted the limits of information available, or not available, about outsourced public services and gave a stark warning to those who claim that FoI concerns can be better met by conditions written into contracts than clear rules written into legislation.
The ICO approach is supported by the News Media Association, which represents the national, regional and local media industries. In a brief sent for this debate, the association says:
“We welcome the debate and hope that the Government will bring forward measures for extension of the Freedom of Information Act 2000 to contractors performing public functions”.
The great gift of 19th-century liberalism to the present day is a Civil Service politically neutral and chosen and promoted on merit—the Northcote-Trevelyan reforms. It is ironic that, 20 years after it was claimed that FoI would undermine the tradition of being willing to speak truth to power, the real threat to these principles is not FoI but politicians who demand only unquestioning obedience to their ideological fixations. In these circumstances, freedom of information becomes a shield for, not a threat to, the integrity of our public services and those who work to serve us and is a bulwark for us all against the abuse of power.